Re W (Children)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Wall,Lord Justice Elias,Lord Justice Thorpe,Mr Justice Holman |
| Judgment Date | 20 May 2010 |
| Neutral Citation | [2010] EWCA Civ 537,[2009] EWCA Civ 644,[2009] EWCA Civ 323 |
| Court | Court of Appeal (Civil Division) |
| Date | 20 May 2010 |
| Docket Number | Case No: B4/2009/2728,Case No: B4/2008/2987 |
[2009] EWCA Civ 323
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM PORTSMOUTH COUNTY COURT
(HIS HONOUR JUDGE MARSTON)
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Holman
Case No: B4/2008/2987
THE APPLICANT APPEARED IN PERSON, ASSISTED BY A MACKENZIE FRIEND.
Mr Morgan (instructed by Portsmouth City Council Legal Services) appeared on behalf of the Respondent.
Mr Justice Holman:
During 2007 a teenage girl, I, made statements on several occasions to the effect that her stepfather, Mr W, had had sexual intercourse with her in circumstances that amounted to rape. On two occasions those statements were made during the course of formal ABE interviews. On other occasions they were made more informally.
Inevitably care proceedings followed in relation to I herself, and two younger siblings. There also followed the prospect of a criminal trial. Plainly the allegations made by I which Mr W faced were as serious as any man could have to face, short of murder. Mr W was unable to obtain legal aid and in the event had to represent himself throughout the ensuing care proceedings.
There were a considerable number of directions hearings early in 2008. During the course of those hearings two significant decisions were taken: first, that the care proceedings would not be postponed to await the outcome of a criminal trial; second, that I herself would not be required to give evidence or participate personally in the care proceedings. As to the first of those decisions, no date had been identified for the criminal trial in the earlier part of 2008, and in those circumstances and considering that plans had to be made for three children, the judge or judges cannot in my view be faulted for decisions taken at that stage to get on with the care proceedings. As to the second of those decisions, I was born on 29 th November 1992 and so in the earlier part of 2008 she was aged about 15 1/2. There is much authority to the effect that courts must be careful not to cause further damage to a child, even at that age, by requiring her to participate unwillingly (as I was) in care proceedings.
The fact-finding hearing finally began in July 2008. Unfortunately, for reasons described by the judge, it greatly exceeded its estimate and became very protracted. In the upshot the result was that the judge, HHJ Marston, only gave his judgment on 24 October 2008. By the time he delivered that judgment, he knew that the criminal trial had indeed been fixed for hearing during December 2008 (see paragraph 6 of his judgment). I have been told by Mr W himself this morning that in fact on 24 October he, Mr W, first had to attend before the criminal court in the Portsmouth Combined Court Centre where the trial date of 8 th December 2008 was actually fixed. He then moved to the courtroom of HHJ Marston in the same building to hear judgment. Mr W tells me that before judgment was delivered, he told HHJ Marston that the date had now been fixed.
By his judgment dated 24 October 2008 HHJ Marston concluded, on a balance of probability, that the statements made by I were true, and in summary that Mr W had had forced sexual intercourse with her on at least one occasion, with an attempt to do so on another occasion. Less than two months later, after a full criminal trial, Mr W was acquitted by the jury, who had heard the evidence of I herself but must have concluded that it was not reliable. Of course, those different outcomes may readily be explained by reference to the different standards of proof. Nevertheless, it is plainly a matter of concern on an issue so important as this, and which must turn entirely on the account and evidence of I, that, within a short space of time, the judge, who had not heard from her, considered (on a balance of probability) that her account was reliable, whereas a jury who did hear from her considered that it was not.
Mr W now applies for permission to appeal to this court. He continues to act in person. He puts forward 16 proposed grounds of appeal. In my view most of those grounds simply go to issues of case management or weight and are not arguable grounds of appeal. I mention that one of those grounds, ground 3, refers expressly to the fact that he did not have legal representation. On his behalf this morning his Mackenzie friend, Mr O'Connell, has strongly stressed that absence of legal representation. In my view, however, it could not possibly afford any ground for appeal from the decision and order of HHJ Marston.
Mr W was refused public funding by the Legal Services Commission. If he was lawfully refused public funding then that is an end of the matter. If he was wrongly refused public funding, then he may have had some remedy within the appropriate appeals structure or even, conceivably, by judicial review. But, contrary to the submission made by Mr O'Connell, a judge seized of care proceedings does not himself have any power to order that public funding and legal representation be provided for a litigant.
Grounds 1 and 2 of the proposed grounds of appeal are essentially a complaint that the care proceedings should have been postponed until after the conclusion of the criminal proceedings. As I have said, it does not seem to me that there is much substance in that ground insofar as it relates to the original decisions to embark upon this fact-finding hearing in July 2008 at a time when no date had even been fixed for the criminal trial.
Grounds 6 and 7 complain that the judge was wrong not to permit cross-examination of I, and that he put insufficient weight on the fact that by summer 2008 I was already 15 1/2 and appropriate protective measures might have been implemented to shield her from the worst impact of having to give evidence in some way. Again, it does not seem to me that there is great force in that ground, bearing in mind, as I understand it, that she was personally strongly refusing to come to give evidence in the care proceedings.
However, in my view, buried within those grounds there is an issue which potentially gives rise to an arguable point on appeal in this case. That issue is as follows. Given that (i) the judge was only finally delivering judgment in late October, (ii) he knew by then that the criminal trial would take place in December, perhaps only some six weeks later, (iii) the whole case rested solely and squarely on the statements by I, (iv) he had not heard evidence from her, but (v) she would inevitably have to give evidence in the now imminent criminal trial, should the judge have postponed judgment so as to be able to take into account the course and outcome of the trial and a transcript of the evidence she actually gave? This is not the same point as the points made in grounds 2, 6 and 7 of the current grounds of appeal, but is encompassed within them.
Mr Morgan, who has appeared on behalf of the Portsmouth City Council throughout, and helpfully appeared today, says that since the outcome of the criminal trial HHJ Marston has indicated that he will in any event be willing to review his judgment, pursuant to Order 37, Rule 1, in the light of transcripts, when available, of the actual evidence given by I at the criminal trial. The difficulty with that may be that that would amount to some form of review by a judge who, arguably, has already shot his bolt by his decision and judgment of 24 October 2008.
I do not go so far today as to say that the point which I have identified above is definitely an arguable point, so I do not today give any permission at all for this appeal to proceed. But I do consider that that point is one which merits the attention of the full court. In my view all the other grounds advanced by Mr W in his document are, in the end, either grounds which go to weight or which go to discretionary case management decisions or which are, frankly, makeweight grounds.
To give effect to that decision I will accordingly order as follows. First, I direct that grounds of appeal 2, 6 and 7 be listed for hearing before the full court for permission to appeal, with the appeal to follow if permission is granted. Second, I refuse permission to appeal on all the other grounds. Third, I direct that the hearing under the first of those directions be before a court of three, one of whom may be a High Court Judge. Fourth, I direct that the appeal be heard as soon as reasonably practicable. That is important because there is still an uncertain outcome for the three children at the heart of these proceedings.
I have been told that Judge Marston has himself already ordered, at the expense of public funds of the Portsmouth Combined Court, a full transcript of all the evidence given by I herself. It does seem to me, however, that there should also be available to this court, and maybe later also to the Portsmouth County Court, transcripts of (i) the ruling which HHJ Price apparently gave at half time in the criminal trial on a submission that there was no case to answer, and (ii) the summing-up of HHJ Price at the criminal trial. Those transcripts must be obtained as a matter of urgency, and I require the Portsmouth City Council both to arrange for them to be obtained and, I am afraid, to pay for them.
There is a second application before me today, namely an application by Mr W to adduce at the appeal fresh evidence. As I understand it, that fresh evidence amounts to a proper transcript of the evidence that I herself gave, and various documents which were disclosed in the course of the criminal trial subsequent to the hearing in front of Judge Marston. It plainly follows from what...
To continue reading
Request your trial
- Re W (Children)
-
Cambridgeshire County Council v PS and Others
...done by basing the same on each of the alternative factual scenarios that the court is being asked to consider (see, for example, In the matter of W (Children) [2009] EWCA Civ 644 at [33]). 31 It may be helpful to highlight the fact that a decision to undertake a split hearing is a case man......
-
A Local Authority v DG and Others
...interplay between public law care proceedings and concurrent linked criminal proceedings. Compliance with Case Management Directions 6 In Re W (A Child) [2013] EWCA Civ 1177, Munby P. observed, at paragraphs 50–54: " It is, unhappily, symptomatic of a deeply rooted culture in the family cou......
- Re W (Children)
-
Anatomy Of A Trial For Child Exploitation
...in the same court centre which might enable a more convenient flow of information where essential (see Re W (Care order: Sexual Abuse) 2009 EWCA Civ 644 and the remarks of Wall LJ about the importance of close liaison between the courts conducting concurrent criminal and family proceedings)......